Prosecutor Apologizes to Porn Theater Owner—Only 51 Years Late

NEW YORK CITY—Even  if one isn't religious, the phrase "When Hell freezes over" is still an excellent answer to some questions. "When will Michael Weinstein stop trying to drive the porn industry out of business?" "When Hell freezes over!" "When will blogger Mike South say something nice and/or truthful about Free Speech Coalition or AVN?" "When Hell freezes over!" "When will the biggest tube sites start really policing uploaders of pirated videos?" "When Hell freezes over!" But every once in a while, Hell apparently does freeze over—and one of those occasions occurred this past week, when former NYC prosecutor Gerald Harris apologized to then-theater owner Jonas Mekas for having busted him, his theater manager Ken Jacobs, and Jacobs' wife, ticket-taker Florence Karpf, for obscenity back in 1964 for showing Jack Smith's "art film" Flaming Creatures and Jean Genet's Un Chant d'Amour ("A Love Song")—and for which Mekas drew a 60-day suspended sentence and had his theater, the New Bowery, shut down—at least until the U.S. Supreme Court reversed the conviction a year or so later. "I feel I owe you an apology," Harris wrote in an email to Mekas, as reported by The New York Times. "Although my appreciation of free expression and aversion to censorship developed more fully as I matured, I should have sooner acted more courageously." "Your surprise generous apology accepted!" Mekas responded. "There should be more such examples." (Is it time for another "When Hell freezes over"?) Mind you, Flaming Creatures isn't exactly your standard porn film. In fact, by current standards, it's barely porn at all. (For anyone who wants to check it out, a not-terribly-watchable copy is here.) About the only things "porn-y" about it are some close-ups of male genitalia, a few shots of people rubbing/fondling/poking a woman's unclothed breast, drag queens getting instruction on how to put on lipstick, and a sort of clothed "orgy" that appears to be taking place at the same time as a thunderstorm. Even The New York Times had its doubts about the film's provocative elements. "Jack Smith's Flaming Creatures (1963) has aged—but so has the print, hence it's hard to fully imagine what the impact would have been in 1966, when the film was judged 'indecent, lewd, and obscene,' and the theater that showed it was closed by the police...," Times reviewer Nora Sayre wrote in 1975. "Now, this lighthearted pantomime of a group-grope seems almost as genteel as your in-laws' home movies. Since many of the participants are male transvestites, some in quasi-Victorian costume, it's occasionally startling to see a real breast. Though the turn-ons are elderly, they're still amusing, and the film has acquired a historical interest." However, in  an "overview" of the film, reviewer Nicole Gagne was even more enthusiastic. "One of the most celebrated of all underground films, Flaming Creatures excited national censorship controversies in its day and was even denounced (and screened!) in the halls of the U.S. Senate," Gagne wrote in The Times. "Jack Smith had hit a nerve with his delirious tribute to the 1940s screen star Maria Montez. (The soundtrack even includes a chunk of her 1943 release Ali Baba and the Forty Thieves.) A hilarious and startling version of Arabian exotica, Flaming Creatures was shot on backdated black-and-white film stock, creating an overexposed and archaic quality to its images—a world of uncontrollable sexual energy where women and transvestites primp, pose, dance, romance, and sometimes assault each other." But perhaps one of the film's most ardent defenders was feminist icon Susan Sontag, who devoted her very first article in The Nation to a discussion of the film. "For the record: in Flaming Creatures, a couple of women and a much larger number of men, most of them clad in flamboyant thrift-shop women’s clothes, frolic about, pose and posture, dance with one another, enact various scenes of voluptuousness, sexual frenzy, romantic love and vampirism —to the accompaniment of a sound track which includes some pop Latin favorites (Siboney, Amapola), some rock-’n-roll, some scratchy violin playing, bullfight music, a Chinese song, the text of a wacky ad for a new brand of 'heart-shaped lipstick' being demonstrated on the screen by a host of men, some in drag and some not; and the chorale of flutey shrieks and screams which accompany the group rape of a bosomy young woman, rape happily converting itself into an orgy," Sontag wrote. "Of course, Flaming Creatures is outrageous, and intends to be. Even the very title tells us that. "Flaming Creatures is not pornographic, if pornography be defined as the manifest intention and capacity to excite sexually; Smith’s depiction of nakedness and various sexual embraces (with the notable omission of straight screwing) is both too full of pathos and too ingenuous to be prurient," she later added. "Smith’s images of sex are alternately childlike or witty, rather than sentimental or lustful. But if Flaming Creatures were pornographic, that is, if it did (like the film Jean Genet made in 1950, Chant d'Amour) have the power to excite sexually, I would argue that this is a power of art for which it is shameful to apologize. Art is, always, the sphere of freedom. In those difficult works of art, works which we now call avant-garde, the artist consciously exercises his freedom. And as the price the avant-garde artist pays for the freedom to be outrageous is the small numbers of his audience, the least of his rewards should be freedom from meddling censorship by the philistine, the  prudish and the blind." Flaming Creatures also had the distinct "honor" of being shown to "several members of the [Senate] Judiciary Committee" in 1965 by the reprehensible Sen. Strom Thurmond (R-ColbertCountry) as part of Thurmond's campaign to prevent then-Justice Abe Fortas from being elevated to Chief Justice—a campaign which not only succeeded but later impelled Fortas to resign from the Court altogether. (Fortas was also in the majority in voting several adult paperback novels, including Sex Life of a Cop, not to be obscene.) According to legal scholar Edward de Grazia, "The 'Fortas Obscene Film Festival' [including Flaming Creatures and Un Chant d'Amour] would be shown again and again on The Hill." But as The Times points out, Thurmond is dead, Fortas is dead, Jack Smith is dead, as are Susan Sontag and Allen Ginsberg, both of whom testified as to the film's artistic merits at Mekas' trial, making any apology from Harris too late for them. As for Mekas, at 92, he continues to make films, and is the founder and chief officer of the Anthology Film Archives in Manhattan. But although Mekas told The Times that he had no intention of further communication with Harris, he did have some second thoughts, telling reporter John Leland, "Maybe he’s ready to do some pro bono work for Anthology Film Archives. That would be one way of atoning. I think I will meet him. We need a lawyer. That will be some turn of events." Pictured: Jonas Mekas and Susan Sontag, with the poster (such as it was) from Flaming Creatures.